Honore ownership oxford essays in jurisprudence


  1. Consequences of property rights
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This view has implications for the very meaning of private property. He thought private property should offer owners a comprehensive package of rights over their resources, including the rights of bequest and profit. But, as Otsuka argues, to protect the right to equal appropriation of later generations, we must limit the rights of present owners.

Consequences of property rights

But the imaginary assumptions Otsuka makes in defending the view masks an important challenge for egalitarians, in reconciling the conflict between the rights of owners and the rights of all to share in the world's natural resources. To strike the right balance, we must develop an alternative social theory of the constituent rights of ownership. Justice in acquisition, private property rights, property ownership, egalitarian proviso, Michael Otsuka, A. At some point in history, worldly resources that lay in common were made into private property. How can we justify this initial creation of private property rights?

It seems that an answer to this question, that of 'justice in acquisition', has implications concerning what property rights should consist of. In this article I focus on teasing out the connection between these two questions. I therefore take it for granted that equality has some substantive role to play in justice in the initial acquisition of resources.

For no one is responsible for the world's fruits, from which all else springs. This article speaks to those who share this intuition, but who think that property rights should offer their holders a comprehensive package of rights over their resources, including the rights of bequest and profit. In the article, I argue that, from this assumption that equality plays a substantive role in justice in acquisition, we should conclude that the 'Egalitarian Proviso' of Michael Otsuka best captures how private property may be acquired.

This is the idea that we should enjoy equality in initial acquisition of unowned resources. But the 'Egalitarian Proviso' makes no sense if it is interpreted with standard liberal assumptions about what ownership should amount to.

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As such, I argue that ownership should be streamlined into a more social relation that takes account of the rights of others. A contextual paragraph will serve to situate my theses within the scholarship, to motivate my research. Locke saw justifying the transformation of the commons into private property as a challenge Locke, sections 25— He placed 'provisos', or conditions, on private appropriation, to justify it Locke, sections 25—27, 31 and Locke thought that various considerations served to render these provisos redundant Locke, sections 36— But contemporary left-libertarians, including Michael Otsuka, think these provisos cannot be done away with, that respecting equality is a condition of justly appropriating resources.

I find Otsuka's account compelling. Otsuka sees the implication this view has for the nature of ownership.

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But his line of thought involves an imaginary assumption. That assumption masks an important tension that those proposing egalitarian theories of justice in acquisition must face. Inspired by the scope for differing conceptions of property — something Di Robilant and Piketty help us see — I develop a different view of what justice in acquisition should teach us about ownership. In section one, I explain the assumptions made in the article, so that our point of departure is clear.

I argue that, given this standpoint, we should endorse Otsuka's Egalitarian Proviso. In section two, I demonstrate that the Egalitarian Proviso is incompatible with the standard liberal picture of ownership expounded by A. I argue instead for a social conception of ownership. This article is aimed at those who accept the two premises, as there is no space to defend these here.

I now explain and do something to motivate these assumptions. The first is that thinking about what it is to justly acquire property has some relevance for thinking about property rights today note that there is a sub-assumption here, namely that some form of private property is justified, at least sometimes.

Accepting this assumption does not make you a libertarian.

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Libertarians, left and right, believe that free transfers of property are justice-preserving e. Nozick, ch. If any force or fraud occurs — if a domino falls short — injustice exists, until it is corrected. Thus justice in acquisition is relevant to justice today because if acquisition is unjust, today's domino is still standing, unless the flow of justice was set in motion again. I am not a libertarian, but I still may, and indeed do, hold that justice in acquisition is at least relevant to the justice of today's property rights.

This is not because every transfer must play out justly, but because justice in acquisition has implications for what property rights themselves ought to consist of. When you pass on a possession, you generally pass on whatever specific rights you had to the resource. If I do not have the right to bequeath something, then if I transfer it to you, you do not have the right to bequeath it. There are two obvious ways to reject the claim that justice in acquisition is relevant to property distributions today. Firstly, within a purely consequentialist framework, it would not make sense.

Test of possession

But as this is an article concerning property rights, I am supposing that talk of rights is legitimate. Secondly, one could hold that time heals injustice. On that view, the normative qualities of distant historical events cannot affect what we ought to do today. But this view faces uncomfortable questions, such as: at what rate do wounds caused by injustice heal Spencer, ?

If it depends, why?

The second assumption is that equality is relevant in an important way to justice in acquisition. Motivating this assumption will require an exploration of competing views. Right-libertarian Jan Narveson rejects the commons view of the world, the view that we each have a claim to it First-comers who use resources acquire a property right in them. There is no limit on the amount of resources a first-comer can appropriate.

However, Narveson stipulates that appropriators must actually use the resources to generate claims over them The appropriator uses a resource if she requires ongoing access to it Furthermore, there must be at least some publically ascertainable evidence of the user's presence and activities Narveson says that first-comers should be privileged as all those who come later interfere with the liberty of first-comers ibid.

Robert Nozick's apparently more moderate view is this: appropriations are justified if they do not make others worse off Nozick, Of course, when someone appropriates, others lose the opportunity to appropriate that resource. But within his theory, he does not count these happenings as such as instances of being made worse off ibid. The problem with these views is that they cannot rule out in advance someone's justly coming to own the whole world. Narveson's view involves no egalitarian restrictions on appropriation.

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Hence we would expect that at least one person will amass quite a fortune. This person could employ explorers, navigators and farmers to go out and appropriate more and more land for them. This control could lead to an ever-expanding operation. Given his commitment to allow free individuals the liberty to enter into voluntary contracts, Narveson cannot deny that the resources the employees use and appropriate may be appropriated in the name of the employer.

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All an appropriator must do is compensate others so that they are materially as well off as they would have been in the state of nature. There is a better view: namely, that our licence to make claims on the world's unowned resources is no greater than anyone else's. This is an expression of an idea that has great intuitive force: that no one is responsible for, or deserves, the world's resources any more than anyone else at least initially. This idea is articulated by left-libertarians Vallentyne et al.

I call it the 'equality approach' to justice in acquisition. It will be helpful to give it a determinate definition. It is: given that no one is responsible for the existence or creation of the world's resources, our claims to use, possess and appropriate them are equal. One can hold this view even if one has a strong view about desert, or creator's entitlements, as it does not concern a person's talents or the resources she creates and herself uses.

The view is that it is arbitrary to favour anything but equality in the initial appropriation of resources. Unlike the right-libertarians' views, the approach does not condone one person coming to own the whole world. Their views involve a formal notion of equality: whether or not an appropriation is just does not turn on the appropriator's identity. We are equal, supposedly, in that any of us can appropriate, in theory.


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But the equality approach deems this insufficient. A girl born after we have used all natural resources has no proper, substantive rights to them, even if it is things other than her intrinsic features that rule out her coming to own resources. It is not immediately obvious what the equality approach — vague as it is — implies for justice in acquisition. Clearly, the egalitarian proviso is not entailed by the equality approach.

I therefore explore a competing theory that could claim to be supported by the equality approach. Other theories we could consider include various interpretation of Locke's proviso. But I delegate exploration of these to an endnote given their fatal flaws.